Bronx Radiology, P.C. v. Allstate Ins. Co., 2009 NY Slip Op 51581(U) (N.Y. Dist. Ct. 7/20/2009)

• Decision Date: 20 July 2009
• Docket Number: 00034/04
• Citation: 2009 NY Slip Op 51581
• Parties: BRONX RADIOLOGY, P.C., A/O CLARA GERMOSEN, LUIS MERCEDES, ELBA RYMER, Plaintiff(S), v. ALLSTATE INSURANCE COMPANY, Defendant.
• Court: New York District Court

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2009 NY Slip Op 51581(U)

BRONX RADIOLOGY, P.C., A/O CLARA GERMOSEN, LUIS MERCEDES, ELBA RYMER, Plaintiff(S), v. ALLSTATE INSURANCE COMPANY, Defendant.

00034/04

Nassau County, Third District.

Decided July 20, 2009.

Israel, Israel & Purdy, LLP, Great Neck, NY, Attorney for Plaintiff.

Law Office of Robert P. Tusa, Esq., Garden City, NY, Attorney for Defendant.

MICHAEL A. CIAFFA, J.

Motion by plaintiff for leave to serve a late demand for trial de novo is DENIED.

Plaintiff's moving papers admit that it received a copy of the arbitrator's decision, dated December 5, 2008, from both the Court and from defendant's counsel.The latter copy was received together with a demand for trial de novo of a similarly captioned matter, bearing a different index number. Both copies of the decision included a standard section filled out by the Clerk giving the parties notice of the filing of the award.

Notwithstanding plaintiff's admitted receipt of two copies of the award containing such notice, plaintiff did not timely file a demand for trial de novo (see 28 NYCRR §28.12), due to its mistaken belief that the defendant had demanded a trial de novo with respect to the very same subject award. When it finally realized that the defendant's demand for trial de novo bore a different index number, it belatedly attempted to file its own demand for trial de novo. The Clerk rejected the filing.

Regrettably, the Court lacks the power to grant the relief requested. The time limit for filing a demand for trial de novo (28 NYCRR §28.12) is akin to the time limit for filing a notice of appeal. Courts lack discretion to extend either time limit. See Chase v. Scalini, 97 AD2d 25 (2d Dept. 1983).

Nor can the Court avoid the strictness of the rule by finding that plaintiff was never properly served with notice of filing of the award. Under controlling precedent, service of the award may be made "either by the court or by a party." Gordon v. Siben &amp Siben, 146 Misc 2d 553, 556 (App Term 1990). The Court file, and plaintiff's motion, show that the Court Clerk completed a printed section of the award giving the parties notice of the filing of the award, and setting forth the specific date of the filing with the Clerk (December 5, 2008). Plaintiff admits receiving a copy of that award from the Court on December 10, 2008. Moreover, plaintiff admits receiving a second copy of the award, with the foregoing notice of filing, from the office of defendant's attorneys on December 17,...